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1998 CONSTITUTIONAL CONVENTION COMMUNIQUÉ

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INDEX
  1. Introduction
  2. Whether Australia should become a republic
  3. Timing and circumstances of any change
  4. Implications for the States
  5. The Bipartisan Appointment of the President Model
  6. A Preamble
  7. Other issues
  8. Ongoing constitutional review process
  9. Australian Flag and Coat of Arms

1. Introduction

The Convention met at Canberra from Monday 2 February 1998 until Friday 6 February 1998 and from Monday 9 February 1998 until Friday 13 February 1998. The Convention considered three questions:

  1. whether or not Australia should become a republic;

  2. which republic model should be put to the voters to consider against the current system of government; and

  3. in what timeframe and under what circumstances might any change be considered.

The Rt Hon Ian Sinclair MP presided as Chairman, with the Hon Barry Jones AO MP as Deputy Chairman.

The Convention was constituted by 152 delegates. Seventy-six delegates were elected under the Constitutional Convention (Election) Act 1997. The other seventy-six were appointed by the Commonwealth Government and included forty representatives of the Commonwealth, State and Territory Parliaments.

Debate on the Convention floor was positive, with wide participation by delegates. While the debate was robust, a strong spirit of civility and compromise was demonstrated.

Three categories of model for a possible Australian republic were before the Convention. They were:

  1. direct election,

  2. parliamentary election by a special majority, and

  3. appointment by a special council following Prime Ministerial nomination.

While there was significant support for models in each of these categories, following an exhaustive balloting process the Bipartisan Appointment of the President set out below was endorsed by a majority of delegates who voted for or against the motion.

The Convention also agreed to a range of resolutions relating to the Preamble and to miscellaneous transitional and consequential issues relating to a change to a republic.

The following specific matters were resolved by the Convention:

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2. Whether Australia should become a republic

That this Convention supports, in principle, Australia becoming a republic.

That this Convention supports the adoption of a republican system of government on the "Bipartisan Appointment of the President Model" as set out below in preference to there being no change to the Constitution.

That this Convention recommends to the Prime Minister and Parliament that the Bipartisan Appointment of the President Model, and other related changes to the Constitution, supported by this Convention, be put to the people in a constitutional referendum.

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3. Timing and circumstances of any change

That a referendum for change to a republic or for the maintenance of the status quo be held in 1999. If the referendum is in favour of a republic, that the new republic come into effect by 1 January 2001.

That prior to the referendum being put to the people, the Government undertake a public education programme directed to the constitutional and other issues relevant to the referendum.

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4. Implications for the States

That the Commonwealth Government and Parliament extend an invitation to State Governments and Parliaments to consider:

  1. The implications for their respective Constitutions of any proposal that Australia become a republic; and

  2. The consequences to the Federation if one or more States should decline to accept republican status.

That any move to a republic at the Commonwealth level should not impinge on State autonomy, and the title, role, powers, appointment and dismissal of State heads of state should continue to be determined by each State.

While it is desirable that the advent of the republican government occur simultaneously in the Commonwealth and all States, not all States may wish, or be able, to move to a republic within the timeframe established by the Commonwealth. That the Government and Parliament should accordingly consider whether specific provision needs to be made to enable States to retain their current constitutional arrangements.

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5. The Bipartisan Appointment of the President Model.

In the event that Australia becomes a republic, the model adopted be the Bipartisan Appointment of the President Model.
  1. Nomination Procedure:

The objective of the nomination process is to ensure that the Australian people are consulted as thoroughly as possible. This process of consultation shall involve the whole community, including:
  1. State and Territory Parliaments;

  2. local government;

  3. community organisations, and

  4. individual members of the public

  5. all of whom should be invited to provide nominations.

Parliament shall establish a Committee which will have responsibility for considering the nominations for the position of President. The Committee shall report to the Prime Minister.

While recognising the need for the Committee to be of a workable size, its composition should have a balance between parliamentary (including representatives of all parties with party status in the Commonwealth Parliament) and community membership and take into account so far as practicable considerations of federalism, gender, age and cultural diversity.

The Committee should be mindful of community diversity in the compilation of a short-list of candidates for consideration by the Prime Minister.

This process for community consultation and evaluation of nominations is likely to evolve with experience and is best dealt with by ordinary legislation or parliamentary resolution; and

The Committee should not disclose any nomination without the consent of the nominee.

  1. Appointment or Election Procedure

Having taken into account the report of the Committee, the Prime Minister shall present a single nomination for the office of President, seconded by the Leader of the Opposition, for approval by a Joint Sitting of both Houses of the Federal Parliament. A two thirds majority will be required to approve the nomination.

  1. Dismissal Procedure

The President may be removed at any time by a notice in writing signed by the Prime Minister. The President is removed immediately the Prime Minister's written notice is issued. The Prime Minister's action must be presented to a meeting of the House of Representatives for the purpose of its ratification within 30 days of the date of removal of the President. In the event the House of Representatives does not ratify the Prime Minister's action, the President would not be restored to office, but would be eligible for re-appointment. The vote of the House would constitute a vote of no confidence in the Prime Minister.

  1. Definition of Powers

The powers of the President shall be the same as those currently exercised by the Governor-General.

To that end, the Convention recommends that the Parliament consider:

  1. the non-reserve powers (those exercised in accordance with ministerial advice) being spelled out so far as practicable; and

  2. a statement that the reserve powers and the conventions relating to their exercise continue to exist.

  1. Qualifications for Office

Australian citizen, qualified to be a member of the House of Representatives (see s. 44 Constitution).

  1. Term of Office

Five years.

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6. A Preamble

The Convention also resolved that the Constitution include a Preamble, noting that the existing Preamble before the Covering Clauses of the Imperial Act which enacted the Australian Constitution (and which is not itself part of our Constitution) would remain intact.

  1. Any provisions of the Constitution Act which have continuing force should be moved into the Constitution itself and those which do not should be repealed.

  2. The Preamble to the Constitution should contain the following elements:

    1. Introductory language in the form "We the people of Australia";

  3. Reference to "Almighty God";

    1. Reference to the origins of the Constitution, and acknowledgement that the Commonwealth has evolved into an independent, democratic and sovereign nation under the Crown;

    2. Recognition of our federal system of representative democracy and responsible government;

  4. Affirmation of the rule of law;

    1. Acknowledgement of the original occupancy and custodianship of Australia by Aboriginal peoples and Torres Strait Islanders;

    2. Recognition of Australia's cultural diversity;

    3. Affirmation of respect for our unique land and the environment;

    4. Reference to the people of Australia having agreed to re-constitute our system of government as a republic; and

    5. Concluding language to the effect that "[We the people of Australia] asserting our sovereignty, commit ourselves to this Constitution".

  5. The following matters be considered for inclusion in the Preamble:

    1. Affirmation of the equality of all people before the law;

    2. Recognition of gender equality; and

    3. Recognition that Aboriginal people and Torres Strait islanders have continuing rights by virtue of their status as Australia's indigenous peoples.

  6. Care should be taken to draft the Preamble in such a way that it does not have implications for the interpretation of the Constitution.

  7. Chapter 3 of the Constitution should state that the Preamble not be used to interpret the other provisions of the Constitution.

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7. Other issues

As to other issues, the Convention resolved that, in the event Australia becomes a republic:

  1. the name "Commonwealth of Australia" be retained.

  2. Australia remain a member of the Commonwealth of Nations in accordance with the rules of the Commonwealth.

  3. the title of the head of state should be "President".

  4. the head of state should swear or affirm an oath of allegiance and an oath of office,

The oath or allegiance might appropriately be modelled on that provided by the Australian Citizenship Act 1948 as follows:

[Under God] I pledge my loyalty to Australia and its people, whose democratic beliefs I share, whose rights and liberties I respect and whose laws I will uphold and obey.

The oath [or affirmation] of office might appropriately be modelled on the following words:

  1. I swear, humbly relying on the blessing of Almighty God, [or, I do solemnly and sincerely affirm and declare] that I will give my undivided loyalty to and will well and truly serve the Commonwealth of Australia and all its people according to law in the office of the President of the Commonwealth of Australia, and I will do right to all manner of people after the laws and usages of the Commonwealth of Australia without fear or favour, affection or ill will, or

  2. I swear [or affirm] that I will be loyal to and serve Australia and all its people according to law without fear or favour.

The Commonwealth Government and Commonwealth Parliament give consideration to the transitional and consequential matters which will need to be addressed, by way of constitutional amendment or other legislative or executive action, including:

  1. The date of commencement of the new provisions;

  2. The commencement in office of the head of state upon oath or affirmation;

  3. Provision for an acting head of state in certain circumstances;

  4. Provision for continuation of prerogative powers, privileges and immunities until otherwise provided;

  5. Provision for salary and pension;

  6. Provision for voluntary resignation;

  7. Provision for the continued use, if and where appropriate, of the term Royal, Crown or other related terms, and use of the royal insignia, by the Defence Forces or any other government body;

  8. Provision for the continued use of the term Royal, Crown or other related term, and use of royal insignia, by non-government organisations;

  9. Provision for notes and coins bearing The Queen's image to be progressively withdrawn from circulation; and

  10. Provision to ensure that any change to the term Crown land, Crown lease or other related term does not affect existing rights and entitlements to land;

  11. Spent or transitory provisions of the Constitution should be removed.

  12. The head of state should be an Australian citizen;

  13. The head of state should be eligible to vote in an election for the Senate or House of Representatives at the time of nomination;

  14. The head of state should not be a member of any political party;

  15. The head of state should be subject to the same disqualifications as set out in section 44 of the Constitution in relation to members of Parliament; and

  16. Any future amendments to section 44 of the Constitution should also apply to the head of state.

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8. Ongoing constitutional review process

The Convention also resolved that, if a republican system of government should be introduced by referendum, at a date being not less than three years or more than five years thereafter the Commonwealth Government should convene a further Constitutional Convention.

Two-thirds of such Convention should be directly elected by the people.

The agenda of such Convention would be to:

  1. Review the operation and effectiveness of any republican system of government introduced by a constitutional referendum;

  2. Address any other matter related to the operation of our system of government under republican arrangements, including:

    1. the role of the three tiers of government;

    2. the rights and responsibilities of citizenship;

    3. whether the Commonwealth should have an environment power;

    4. the system of governance and proportional representation;

    5. whether the mechanism for constitutional change should be altered;

    6. constitutional aspects of indigenous reconciliation;

    7. equal representation of women and men in parliament;

    8. and ways to better involve people in the political process.

The Convention be preceded by an extensive and properly resourced community consultation process, to commence within twelve months of the passage of a referendum to establish a republic, in which ideas and responses on the above matters would be actively sought by the Government and Parliament.

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9. Australian Flag and Coat of Arms

In addition to the matters on which resolutions were adopted, the Australian Flag and Coat of Arms were also raised in debate before the Convention. While it was beyond the terms of reference for this Convention to make formal resolutions on the issue, the Chairman undertook to draw the discussion to the attention of the Government.

A number of delegates sought entrenchment of the design of the Australian Flag and Coat of Arms in the Constitution so that they could not be changed without the necessary majority at a referendum. Other delegates did not support incorporation in the Constitution but agreed that the Flag should not altered without a vote of all electors.

Full details of the proceedings and details of the voting on final resolutions will be presented to the Commonwealth Parliament and published in a report of the Convention.

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Signed on behalf of delegates, this thirteenth day of February 1998
Ian Sinclair Barry Jones
Chairman Deputy Chairman